Adams v. Freeman

9 Johns. 117 | N.Y. Sup. Ct. | 1812

Per Curiam.

The plaintiff was attached and imprisoned under the statute, (Lams, vol. 1. 156.) for refusing or neglecting to perform the award; and the statute makes the party, in such case, subject to all the penalties of contemning a rule of court.” The irregularity contended for on the part of the plaintiff is, that he was arrested on the attachment, on the 31st of May, being after the return day. The attachment was returnable on the 29th of May,"and on that day, the defendant avers that he delivered the process to the sheriff. It was lawful for the sheriff to have arrested the plaintiff on the return day, and it does not appear that the defendant gave any direction to have him arrested afterwards. The trespass (if any) was, therefore, committed by the sheriff, and not by the defendant; and it does not appear that the defendant even knew, at the time the plaintiff was detained a prisoner, that he had been arrested after the return day. There is no law or justice, that a party who sues out and delivers to the sheriff a valid process, should be responsible for the irregularity of the sheriff in executing the process, unless it appear, affirmatively, that the sheriff acted under his orders, when he committed the trespass. The pariy who sues out process from a competent court, is responsible only for the validity of the process, and for good faith in suing it out. He is not to answer for the acts of the officer, beyond the authority of the precept, unless he makes those acts his own. The doctrine of a ratification of a trespass committed without the authority of the party ratifying, does not seem to apply. It may be questionable, whether an assent, afterwards, to a trespass, will make the party assenting a trespasser ab initio, in cases of mere personal tort. (Bishop v. Viscountess Montague, Cro. Eliz 824.) But, at any rate, the assent must be clear and explicit, and. founded on full knowledge of the previous trespass. There is no evidence here of any such assent, and the plaintiff should have replied and averred that assent, if he would avoid the plea. The appearance of the plaintiff in court, on the 1st of June, was no evidence that he was arrested, after the return day; and if the defendant had been informed of it, he had a right to consider the plaintiff as waiving the objection to the time of the arrest, since he submitted to it, by making no application to the court to be discharged, and by acquiescing in a continuation of the imprisonment, or effect of the arrest, until the subsequent term of the court of common pleas. The plea is, therefore, a sufficient bar to the action; and without touching any other question that was raised, the defendant is entitled to judgment.

Judgment for the defendant.